AILA Comments on Public Charge - Feb. 27, 1998

Re: Response to the Interim Rule Regarding Public Charge published at 62 Federal
Register 67563, December 29, 1997

Dear Sir:

In response to the interim rule implementing provisions of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”) regarding the
acceptance of affidavits of support by consular posts abroad and the determination by
consular officers of public charge, following are the comments of the American
Immigration Lawyers Association (“AILA”) and the American Immigration Law
Foundation (“AILF”).

AILA is a voluntary bar association of over 5,000 lawyers and law professors practicing
and teaching in the field of immigration and nationality law. Its members represent the
entire spectrum of those involved in our country’s immigration laws, from aliens seeking
immigration benefits to employers, U.S. citizens and other U.S. entities seeking to
sponsor foreign nationals.

AILF is a non-profit organization established to increase public understanding of
immigration law and policy, to promote public service and professional excellence in the
field of immigration law, and to advance fundamental fairness, due process, and basic
constitutional and human rights in immigration law and administration.

Because of this collective expertise , which includes extensive experience in the field of
immigrant visa processing, AILA and AILF are uniquely qualified to assess the impact
of this interim rule.

As an initial matter, we are appreciative of the Department’s desire to open these issues
for public comment. We hope that the Department will continue to share its thoughts on
the implementation of IIRAIRA as it moves through the process of guiding consular
officers through new systems and new requirements.

However, we remain concerned with the implementation of the affidavit of support requirement, even
with the limited role played by the Department in interpreting these requirements. In particular, we are
concerned that the level of discretion given to consular officers to find likelihood of becoming a public
charge despite meeting the requirements of the income or assets test imposed by the new affidavit of
support.

The interim rule (40.41 (a) and (d)) provides for a consular officer to determine that a sponsor has not
satisfied the public charge ground of inadmissibility, even if there is on file a properly executed and
presumably enforceable affidavit of support (I-864) and the sponsor has passed all income or assets test
required by the INS. There is no guidance for the consular officer, although the INS regulations provide
some guidance as to the inability to maintain the sponsor’s income at the required level. Faced with
this lack of guidance, consular officers will have difficulty distinguishing among a myriad of factors
beyond those authorized by the statute. This uncertainty will prejudice many immigrants and sponsors
who otherwise meet the statutory and regulatory income requirements. To the extent that the affidavit of
support and its criteria were instituted to add elements of certainty into the process of identifying and
eliminating those likely to become a public charge, this unbridled discretion is without support.

Assuming this discretion will continue to play an important role in the process, it will be even more
important to afford would-be immigrants a meaningful opportunity to rebut a finding of inadmissibility
on these grounds. Such a review process will aid consular officers in making correct and equitable
decisions, protecting the integrity of the process and also protecting the immigrants and their sponsors.

At a minimum, we suggest that the Department consult with interested stakeholders prior to the issuance
of field guidance on these issues. We remain available to participate in such discussions and would
welcome an opportunity to discuss the implementation of these issues further.

Finally, we thank the Department for this opportunity to present our views and look forward to receiving
your response.

Sincerely,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION
AMERICAN IMMIGRATION LAW FOUNDATION